Cite as U.S. v. LaGue, 472 F.2d 151 (9th Cir. 1973)

          UNITED STATES of America, Plaintiff-Appellee,

                               v.

                Herb LAGUE, Defendant-Appellant.

                          No. 72-1542.

         United States Court of Appeals, Ninth Circuit.

                          Jan. 3, 1973.

     Jerome Fishkin (argued), San Francisco, Cal., for defendant-
appellant.

     Lawrence J. Semenza, Asst. U. S. Atty. (argued), Bart M.
Schouweiler, U. S. Atty., Reno, Nev., for plaintiff-appellee.

     Before TRASK, GOODWIN and WALLACE, Circuit Judges.

     PER CURIAM:

     This is an appeal from a conviction by a jury of possessing
unregistered machineguns in violation of the National Firearms Act,
26 U.S.C. section 5861(d). [footnote 1]

     The government contended appellant possessed the three
unregistered automatic guns located in a warehouse which had been
leased to Twin City Carpet Company, a LaGue family business. 
Appellant, as a partner in the carpet business, was one of several
employees who had access to the warehouse.  The indictment charged
appellant with possession of the guns on or about March 4, 1971. 
Several witnesses testified they had seen some or all of the guns
in appellant's possession on various occasions in previous years
and as recently as August 1970.  The guns had been at appellant's
home and at a mine owned by appellant.  Appellant was acquitted of
a companion charge for possession of an unregistered silencer. 
There was no evidence connecting appellant with the silencer at any
time before it was discovered with the guns.

     The argument that the evidence was insufficient to support the
verdict and judgment is clearly without merit. The possession
necessary to establish the offense may be constructive possession
as well as actual possession.  United States v. Holt, 427 F.2d
1114, 1116 (8th Cir. 1970) ; Rodella v. United States, 286 F.2d 306
(9th Cir. 1960), cert. denied, 365 U.S. 889, 81 S.Ct. 1042, 6
L.Ed.2d 199 (1961).

     The record includes testimony of witnesses who had seen the
defendant with weapons similar to those taken from the LaGue family
warehouse; it also contains the testimony of an undercover agent to
conversations with defendant in which the defendant discussed his
ownership of weapons like those found.  From all of this and the
denials of the defendant which the jury was entitled to disbelieve
the verdict gathered ample support.

     Appellant's second contention is that as a possessor he is not
required to register his weapons. 26 U.S.C. section 5861(d) does
not make failure to register the guns a crime, but rather the
possession of certain guns which should have been registered but
were not.  Kilcrease v. United States, 457 F.2d 1328, 1332 (8th
Cir. 1972) ; United States v. Stella, 448 F.2d 522, 524 (9th Cir.
1971).

     Evidence in this case indicated appellant's possession
antedated the effective date of the Gun Control Act of 1968.  An
amnesty period was provided by Congress that enabled any possessor
to register a gun which required registration and gave 30 days
following the effective date of the Act in order to do so.  The
appellant did not comply.

     The errors in the conduct of the trial which have been
assigned by appellant have been examined and are without substance.

     The judgment is affirmed.

                            FOOTNOTES

1. 26 U.S.C. section 5861 provides:

     "It shall be unlawful for any person-
     *             *              *                     *
     "(d) to receive or possess a firearm which is not registered
to him in the National Firearms Registration and Transfer Record;
. . . "